The 5th Amendment

Discussion in 'West Mall' started by Statalyzer, Jun 18, 2019.

  1. Statalyzer

    Statalyzer 10,000+ Posts

  2. Clean

    Clean 5,000+ Posts

    So, I guess the old saying that "you can be tried twice for the same offense" ain't always so, huh?
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  3. Monahorns

    Monahorns 1,000+ Posts

    Is the issue that the Constitutional amendment doesn't include state law? Or doesn't extend to state law?
  4. Monahorns

    Monahorns 1,000+ Posts

    A bit of commentary on the subject whether you agree or disagree.

    Supreme Court Upholds Dual-Sovereignty Doctrine | National Review

    I have to admit I do see both sides to this. States are there own sovereign government, so I think Federal and State legal action can be (and should be) pursued independently. I wish it was more adversarial though.

    My concern though is that Feds and State work together too much and the number of laws and regs on the books grows and grows. Dual sovereignty can be abused in clearly obvious ways.

    Would prefer to see the number of laws greatly reduced but leave dual sovereignty in place for now and add more safeguards to protect citizens. The author gives at least one idea.
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  5. Sangre Naranjada

    Sangre Naranjada Liquor Man

    Thanks for the article. My gut tells me dual sovereignty is a bad idea for everyday citizens, but I appreciate this is a nuanced argument.
  6. Monahorns

    Monahorns 1,000+ Posts

    Like I said before, I think the best solution is to reduce the areas where the 2 legal systems overlap. Less overlap leads to less chances for this.
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  7. Statalyzer

    Statalyzer 10,000+ Posts

    The contention is not that the 5th Amendment doesn't apply to states - the same state still can't try you twice for the same alleged action.

    The contention is that the 5th Amendment doesn't extend to being tried by two different governmental entities. As if the 5th Amendment said "same law", rather than "same offence".
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  8. Seattle Husker

    Seattle Husker 5,000+ Posts

    Does "same offense" = same action? I could see offense equating to each unique law that was broken. In this case, the state and federal statutes are unique and carry different punishments.
  9. VYFan

    VYFan 2,500+ Posts

    The McCarthy article notes that Congress could pass a regular law saying that a federal prosecution could not follow a state prosecution. Or the Justice Dept could so decide. I guess the idea is that it is used so sparingly, and usually to correct a clear error in the first trial, that it hasn't become unpopular.

    If, though, it really were being used (as it could be) to simply try people twice whenever once didn't work, it would, and ought to, become unpopular. That's why it is interesting that additional protections can be put in for the accused without actually amending the constitution.
  10. Mr. Deez

    Mr. Deez 10,000+ Posts

    That was the root of the disagreement. The majority (Alito writing the opinion, joined by Roberts, Thomas, Breyer, Kagan, Sotomayor, and Kavanaugh) go with the unique law.

    The dissent (Ginsburg and Gorsuch) go with the action. Here's a short excerpt from Gorsuch's dissent that I think explains it well.

    "As this Court explained long ago in Blockburger v. United States, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two
    offenses or only one, is whether each provision requires proof of a fact which the other does not." So if two laws demand proof of the same facts to secure a conviction, they constitute a single offense under our Constitution and a secondt trial is forbidden. And by everyone's admission, that is exactly what we have here: The statute under which the federal government proceeded required it to prove no facts beyond those Alabama needed to prove under state law to win
    its conviction; the two prosecutions were for the same offense."

    I agree with Gorsuch and Ginsburg. This is a BS ruling.
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  11. Mr. Deez

    Mr. Deez 10,000+ Posts

    You are right that the feds have far too many laws (including criminal laws) and that reducing them would help the situation. However, that's a bit of a dodge. Even under the most originalist or textualist applications of the Constitution, there would be some degree of overlapping jurisdiction and therefore the problem would still exist. For example, suppose President Washington was visiting Boston on official business and was assassinated. The State of Massachusetts would have jurisdiction because the incident happened there and because the assassin was physically present there. However, the feds also would have jurisdiction because it involves the murder or a federal official acting on official business.

    The bottom line is that McCarthy is full of **** on this. His article is good, but he put an enormous prosecutor's spin on the issue, which isn't surprising given his background. The ultimate result of his argument is that if the feds have jurisdiction, you basically don't have a right not to be exposed to double jeopardy, even though both jurisdictions are prohibited from exposing individuals to double jeopardy. That's just absurd given the text and intent of the Fifth Amendment. Read Justice Gorsuch's dissent. It has a lot more substance and actual law to it.
  12. mb227

    mb227 2,500+ Posts

    There are a number of instances where the same conduct will run afoul of different provisions of both State and federal law. Rarely are there prosecutions had by both entities, although it will be seen more often when a weapon is involved and the individual in question is a felon precluded from the mere possession of said weapon (or even a single round of ammunition). The feds get jurisdiction in a gun case because of it typically having crossed State lines in order to be IN the possession of the felon...

    Many years ago, I had a client who was charged at both levels for a a car-jacking. The State charge was a simple claim of Aggravated Robbery. However, the feds got their bite at the apple under statutes related to acts that affected commerce.

    Where many attorneys ALSO tend to drop the ball in these cases is by letting their client's State case get disposed of first...the feds then won't commence the sentence in their case until after the State sentence had been completed, either by discharge or by release to parole/mandatory supervision.

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